Flodesk Terms of Service

Thank you for using Flodesk!

Version Date. November 2024

Please read these Flodesk Terms of Service carefully. This website (the “Site”) is operated by Flodesk, Inc. (which, together with its subsidiaries and affiliated entities, are referred to as “Flodesk”); the terms “we” “us” and “our” refer to Flodesk.

Flodesk provides an online platform which allows users to create, send and manage email marketing campaigns, and to facilitate e-commerce transactions, among other things (the “Services”). These Terms of Service (the “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink), establish the terms and conditions under which you are allowed to use the Site and the Services.

IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SITE OR SERVICES. WE MAY UPDATE OR MODIFY THESE TERMS FROM TIME TO TIME AND WILL POST THEM AND UPDATE THE DATE. BY ACCESSING OR USING THE SITE OR THE SERVICES THEREAFTER, YOU AGREE TO BE BOUND BY SUCH UPDATED TERMS AND IF YOU DO NOT AGREE, YOU SHOULD NOT CONTINUE TO USE THE SERVICES.

1. General terms and conditions

1.1 Account

To use the Services, you must sign up for an account. When you sign up for an account a legal agreement of these Terms between you and Flodesk (the “Agreement”) is formed, and the Subscription Term (as defined in Section 5.1) will begin. The Subscription Term will continue for as long as you have a Flodesk account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. We reserve the right to refuse service, close accounts, and change eligibility at any time. We may, in our sole and absolute discretion, limit or cancel accounts. These restrictions may include accounts that use the same billing and/or shipping address. If we make a change to or cancel an account, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time your account was created. It is your responsibility to ensure that the information you provide is true, current and accurate.

1.2 Qualifications

You represent and warrant that you meet the following qualifications: (1) if you are an individual person, you are at least the age of majority in your place of residence, or (2) if you sign up for an account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf. You represent and warrant that you are not based in Cuba, Iran, North Korea, Syria, or any other territory that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist-supporting” country, and are not listed on any U.S. government list of prohibited or restricted persons.

1.3 Registration

You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the account registration form and elsewhere, and you agree to update such information if it changes.

1.4 Account Access

You may access and use the Service and access your Flodesk account (the “Account”) in accordance with these Terms. We may, in our discretion, permit you to authorize additional users to access and use your Account for your benefit. You, and any such additional users, are referred to as “Authorized Users”. You will be responsible for each Authorized User’s use of your Account, and each Authorized User’s compliance with this Agreement.

1.5 Usernames and Passwords

You will require that You and all Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Flodesk will not have any liability under this Agreement for actions taken using your or your Authorized Users IDs and passwords, including any unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords. You will be responsible for restricting access by any Authorized User who is no longer authorized to access the Services. You agree to notify us immediately of any unauthorized use of your Account or any other breach of security. Usernames are unique and can only be used once. If your Account is terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed.

1.6 Communication with You

We reserve the right to send messages to you (a) to inform you of changes or additions to the Site, the Products, this Agreement or the Fee Schedule (defined below), (b) to inform you of violations of this Agreement or actions relating to your privilege to access and use the Site or the Products, (c) to inform you of any other matter related to the Site, the Products or this Agreement or (d) for marketing and other purposes. Nothing in this provision shall require or obligate us to send any notice if no notice is required elsewhere in this Agreement. You may unsubscribe from our marketing communications at any time, although you will continue to receive transactional messages from us. You agree that we may, but are not obligated to, monitor or record any of your telephone conversations and chat texts with us for quality control purposes, for purposes of training our employees and for our own protection. You further agree that any Authorized Users or anyone else you authorize to use your account consents to such monitoring or recording as well. You acknowledge that we may not monitor or record any telephone lines or calls and that we do not guarantee that recordings of any particular telephone calls will be retained or are capable of being retrieved or, even if retained and retrievable, will be made available to you. By entering into this Agreement, you acknowledge that we may contact you via telephone (either by a live person, automatic dialer, prerecorded message or a combination of the foregoing) to discuss the products and you consent to such contact. Further, you consent to receive such phone calls at the telephone number you entered on the Site. You do not need to agree to this provision in order to use the Site or the Services and if you would like us not to contact you by telephone, please send an email to benjamin@flodesk.com.

2. Use of the Services. Prohibited Uses

2.1 Your Use of the Services, Service Limits

The Services are intended to be utilized for your own personal or business use. You will not (and will not permit any third party to): sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Services to a third party (except as expressly set forth in Section 1.4) or in a service bureau or outsourcing offering. You may also participate in the Flodesk Affiliate Program, which is a marketing program offered by Flodesk, wherein you may earn commissions for any referrals using your Affiliate Link/Code as described in the Flodesk Affiliate Terms, attached hereto as Appendix II of the Terms. The Services are intended for small to medium size businesses, and any single email distribution shall not exceed 1 million recipients, without our prior written approval.

You agree that we may establish general practices and limits concerning use of the Services, including the maximum number of messages or campaigns that may be distributed by you and/or the maximum size of any messages or campaigns that may be transmitted by means of the Services. We reserve the right to modify, revise, suspend or discontinue any part of the Services (including, without limitation any free, “freemium” or other promotional products or services which are a part of the Services), in whole or in part, either temporarily or permanently and with or without notice, and you acknowledge that we are not obligated to support or update the Services in any manner. If we discontinue any function of the Services in its entirety that you are using, we will use commercially reasonable efforts to provide you with advance notice and an opportunity to cancel your Account.

2.2 Prohibition on Spam; Permission Practices

You agree that you will not use the Services to send unsolicited email messages (sometimes called “spam“). You are responsible for ensuring that your use of the Services do not generate a number of spam or other complaints in excess of industry norms. We may terminate or suspend your Account or suspend if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Services or file a spam report against you.

a) Recipients

You agree to import, access or otherwise use only contact lists in connection with the Services for which all listed parties have consented, per applicable law, to receive correspondence from you. It is generally not sufficient consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks “Like“ on your Facebook® page, or “follows“ you on Twitter. You agree not to send messages through the Services to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses. We reserve the right, without notice, to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email messages or campaigns from entering, utilizing or remaining within our network.

b) Sender

In your use of the Services, you shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious. You agree that you are the sole or designated “sender” (as such term is defined in the United States CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the “CAN-SPAM Act”)) of any message sent by you using the Services. Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent by you using the Services (within the meaning of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“Canada’s Anti-Spam Legislation”). You agree that for any email message sent by you using the Services, (i) the “from” line of any email message sent by you using the Services will accurately and in a non-deceptive manner identify your organization, your product or your service, (ii) the “subject” line of any email message sent by you using the Services will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (iii) you will include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.

c) Unsubscribe

Every email message sent using the Services must contain an “unsubscribe“ link that allows contacts to remove themselves from your mailing list. The “unsubscribe” link must remain active for at least 30 days after the email is sent. You agree that you will not remove, disable or attempt to remove or disable the link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission and update the email addresses to which messages are sent through your Flodesk Account. You cannot charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act and other applicable laws, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your Account and this Agreement.

d) No Messages if Recipient has Opted Out

You agree that you shall not utilize the Services to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose) (a “commercial electronic mail message“ as defined in the CAN-SPAM Act or Canada’s Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.

2.3 Prohibited Uses and Content

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Site or its content, or the Services: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to offer content, Services or services related to loans, credit and/or debt management, adult entertainment, pharmaceutical Services, multi-level marketing, affiliate marketing, money and lead generating opportunities, gambling, lottery, sweepstakes, cryptocurrencies, or medical or nutritional supplements; or (l) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

2.4 Limitations

You understand that not all messages or campaigns sent through use of the Services will be received by or will be capable of being viewed by their intended recipients or will be viewable by your recipients in the same way they appear in our Service environment. You further understand that delivery of messages by means of Service may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You also understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short.

2.5 Monitoring and Removal

Although we have no obligation to monitor the content provided by you or your use of the Services, we may do so and may block any messages or campaigns, remove any content, including websites, surveys, event registrations, and social campaigns, or prohibit any use of Services that we believe may be in violation of any provision of this Agreement. In no case will the foregoing make us responsible or liable for compliance with any such laws or obligations, for which you remain solely responsible and liable.

3. Flodesk Checkout Services

3.1 Additional Terms and Conditions

The Services include the Flodesk Checkout payment platform (the “Checkout Platform”), which allows users to create digital sales pages to sell digital goods and services, and to process transactions through the Checkout Platform via a Stripe Connected Account. The terms and conditions of this Section 3 apply specifically to use of the Checkout Platform.

3.2 Fees

A non-refundable fee of three percent (3%) of the amount of each Checkout Platform transaction plus US$0.30, or equivalent in the transaction’s fractional currency, will be payable to Flodesk (and will be deducted from funds payable to the you, as provided in Section 3.4).United States: 3% of each Checkout Platform transaction + USD $0.30
Canada: 3% of each Checkout Platform transaction + CAD $0.30
Australia: 3% of each Checkout Platform transaction + AUD $0.30
New Zealand: 3% of each Checkout Platform transaction + NZD $0.30
Great Britain: 3% of each Checkout Platform transaction + £0.30
Europe: 3% of each Checkout Platform transaction + €0.30

3.3 Stripe’s Express Account Services

The Checkout Platform currently uses Stripe’s Express Account services. To utilize the Checkout Platform, you will need to establish a “Connected Account” with Stripe, and agree to Stripe’s applicable terms of service and/or agreements for that account (e.g. the “Stripe Connect Account Agreement”). You agree that Flodesk may use your Connected Account data in the provision of the Checkout Platform services to you, and you authorize Flodesk to perform the Checkout Platform Services with respect to your account.

3.4 Authorization to Process Payments, Refunds and Related Transactions

You hereby authorize Flodesk to (i) facilitate payments, account debits, refunds, chargebacks, and all other supported or required transactions through your Connected Account, (ii) access your Connected Account and any Data (as those terms are defined in the applicable Stripe documentation) contained in your Connected Account; (iii) assist you with creating and managing transactions with your customers and users; and (iv) deduct amounts (for example, fees for use of the Checkout Platform) from funds payable to you from transactions occurring in connection with the Checkout Platform. If your Connected Account has insufficient funds to process refunds or other fees or charges which are payable from your Connected Account, Flodesk may recover such amounts from you by charging your credit card.

3.5 Responsibility for Transactions

The Services, including the Checkout Platform, are not a marketplace. Any contract of sale made through the Checkout Platform is directly between you and your customer. You are solely responsible for, and Flodesk disclaims all liability for, the provision of any goods or services sold to your customers or users and paid for through the Checkout Platform, and any obligations you may owe to your customers or users. You acknowledge and agree that you are always financially liable to Flodesk for disputes, requests for refunds (including chargebacks on a payment card network, or Automated Clearinghouse Network, and any fines that arise from your use of the Checkout Platform).

You may only use the Checkout Platform for legitimate transactions with your customers. Flodesk is not responsible for the products or services you publicize or sell, or that your customers purchase using the Checkout Platform; or if you accept donations, for your communication to your customers of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your customers. Flodesk provides Checkout Platform services to you but we have no way of knowing if any particular purchase, sale, donation, order, or other transaction is accurate or complete, or typical for your business. You are responsible for knowing whether a transaction initiated by your customer is erroneous (such as a customer purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases, or a request for delivery to a foreign country where this typically does not occur). If you are unsure if a transaction is erroneous or suspicious, you agree to research the transaction and, if necessary, contact your customer before fulfilling or completing the transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Checkout Platform, and for any claims made by your customers with respect to a transaction.

3.6 Direct Access or Management of your Stripe Connected Account

Depending on your configuration of the Checkout Platform, you may have access to directly manage your Stripe Connected Account through the Stripe dashboard. If such access is made available to you, you are responsible for all actions taken on your Stripe Connected Account through the Stripe dashboard, including the initiation of refunds or changing of depository bank information. Depending on your location, the Checkout Platform may allow you to receive payment processing proceeds via settlement into a bank account connected to your debit card (“Instant Payout“). You will be notified in advance if there is a fee associated with your use of Instant Payouts. Flodesk reserves the right to change or suspend, at its sole discretion and without prior notice, either or both Checkout Platform services, or Instant Payouts to you, at any time (a) due to pending, anticipated, or excessive disputes, chargebacks, refunds, or reversals; (b) in the event of suspected or actual fraudulent, illegal or other malicious activity; or (c) where we are required by Law or court order.

3.7 Flodesk Checkout Data

To facilitate the use of your Connected Account and the Checkout Platform, you hereby consent to our collection, use, retention and disclosure to Stripe, of data pertaining to or generated in connection with your use of the Checkout Platform, including information that we may collect directly using cookies or other similar means. This provision is to be read together with this Agreement’s more general provisions regarding data, and data protection and privacy, and is not intended to limit or restrict those provisions in any manner.

3.8 Checkout Platform Indemnification

In addition to your obligations under Section 12 (Indemnification), you expressly agree to defend, indemnify and hold harmless (including attorneys’ fees) Flodesk from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to your failure to properly describe or deliver goods or services, or to comply with your legal or contractual obligations to your customers. You also agree to defend, indemnify, and hold harmless (including attorneys’ fees) Flodesk from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (i) activity on your Connected Account, whether initiated by you or not (including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, or use of the Checkout Platform in a manner that is illegal or inconsistent with this Agreement or any applicable Stripe Connect Account Agreement); and (ii) any inaccurate or incomplete information provided to Flodesk, or Stripe and Flodeskas part of the onboarding or use of the Connected Account.

3.9 Acceptable Use of Checkout Platform, Prohibited Products

In addition to other terms and conditions regarding acceptable use of the Services, your use of the Checkout Platform is subject to the Flodesk Checkout Prohibited and Restricted Businesses Policy, attached as Appendix I to the Terms (“Stripe Policy”), and incorporated herein by reference. You acknowledge and agree that your use of your Stripe Connected Account is also subject to restrictions and prohibitions established by Stripe, which may differ from Flodesk’s restrictions and prohibitions as stated in Section 2.3 of these Terms (“Flodesk Policy”). The Flodesk Policy and the Stripe Policy are to be read together, and your use of the Checkout Platform is subject to both policies. For example, if a product is prohibited by Stripe, but is not expressly prohibited by Flodesk, you are prohibited from selling that product using the Checkout Platform.

3.10 Suspicion of Unauthorized or Illegal Use

We may refuse, condition, or suspend any transactions that we, in our sole and absolute discretion, believe: (i) violate the Terms, this Agreement or other agreements you may have with Flodesk; (ii) violate the Stripe Policy or Stripe Connect Account Agreement; (iii) are unauthorized, fraudulent or illegal; or (iv) expose you, Flodesk, or others to risks unacceptable to Flodesk, as determined in Flodesk’s sole and absolute discretion. If we suspect or know that you are using or have used the Checkout Platform for unauthorized, fraudulent, or illegal purposes, we may share any information related to such activity with Stripe, and with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your Flodesk Account, your customers, and transactions made through your use of the Checkout Platform.

4. Billing and Payment

4.1 Fees

a) Fee Schedule

You will be responsible for the fees applicable to your Account and your use of the Services, in accordance with the then applicable fee schedule (the “Fee Schedule“). Fees will be billed for the periods applicable to your subscription (e.g. monthly, quarterly, annually) even if you are not actively using the Services, and, in the case of Flodesk Checkout, will be billed and collected in connection with specific transactions, as set forth in the Fee Schedule. The Fee Schedule is subject to change at any time in our sole discretion, and if you do not agree to any such changes, you should contact us to cancel your Account. We will use good faith efforts to notify you prior to the effectiveness of any significant change to the Fee Schedule, but you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by us and any applicable discounts. You acknowledge and agree that our measurements are the definitive measurements for payment due and owed hereunder.

b) Disputes

Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.

4.2 Payments & Taxes

a) Payments

When you sign up for an Account, you agree to periodic recurring billing, for the applicable subscription period, starting on the date you sign up. Billing occurs on the same day of each billing period, based on the date that you started your Subscription Term. Payments are due for any period on the same or closest date to the day you made your first payment. If any part of a month is included in the Subscription Term, then payment is required for the full month. If you exceed your self-selected usage limits for your Account plan, then you’ll have to pay additional charges for the prior billing cycle on or before the next payment date.

You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

b) Taxes

We collect and remit tax from our customers located in certain state, local and foreign jurisdictions where software delivered as a service is taxable. We determine your local taxing jurisdiction based on the billing address that you provide during Account registration (or if not available, the business address used in connection with the Service). Fees set forth in the Fee Schedule do not take into account any taxes. You agree to be responsible for and to pay any sales, personal property, use, VAT, excise, withholding, or any other taxes (collectively “Taxes”) that may be imposed, based on this Agreement, or your use of the Services. Without limiting the foregoing, you agree that you are solely responsible for determining, collecting, withholding, reporting, and remitting applicable Taxes, duties, fees, surcharges and additional charges that arise from or as a result of any sale made through Flodesk Checkout. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to Flodesk of your exemption. If you are not charged Taxes by us, you are responsible for determining if taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.

5. Terms and termination

5.1 Subscription Term

The Service is made available to you on a subscription basis for the term you have selected when signing up for the Service (“Subscription Term”). The Subscription Term will start when you sign up for your Account, and will automatically renew for additional, successive Subscription Terms until terminated in accordance with Section 5.2 (Termination).

5.2 Termination

You or Flodesk may terminate the Agreement at any time and for any reason by terminating your Flodesk Account, or giving notice to the other party. Once your Account is terminated, (i) we will cease providing you with the Services, and you will no longer be able to access your Account; and (ii) you acknowledge and agree that we may permanently delete your Account and all the data associated with it. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed. If there are any outstanding fees owed by you at the date of termination, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again. If we terminate your Account without cause, we’ll refund a prorated portion of your prepayment for a subscription period. We won’t refund or reimburse you in any other situation, including if your Account is suspended or terminated for cause, such as for a breach or violation of the Agreement.

We may, in our sole discretion, whether to comply with applicable law or regulation or otherwise, terminate your Account or your access to or use of the Services, disable your Account and/or delete or confiscate all or a portion of your contacts, files, and content, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. Upon request within 30 days of your termination, we will provide the list of unsubscribe requests from your Flodesk account to you. Under the CAN-SPAM Act, Canada’s Anti-Spam Legislation and the GDPR, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your Flodesk Account and this Agreement.

5.3 Survival of Certain Provisions

The following Sections will survive any expiration or termination of this Agreement: 3 (Checkout Platform Services) with respect to transactions initiated prior to the date of termination, 4 (Billing and Payment), 5.2 (Termination), 5.3 (Survival of Certain Provisions), 6.1(a) (Flodesk Content); 6.2 (No Rights in Service or Software); 6.3 (Your Information and Contacts), 10 (Warranty Disclaimer; Remedies; Release); 11 (Limitations of Liabilities), 12 (Indemnification), and 16 (General Provisions).

5.4 Suspension of Service

In addition to any of its other rights or remedies set forth in this Agreement, (including, without limitation, any termination rights, and suspension rights pertaining specifically to Checkout Platform services) set forth in this Agreement, Flodesk reserves the right to suspend provision of the Services: (a) if you are overdue on a payment; (b) if we deem such suspension necessary as a result of your breach of any terms of the Agreement, (c) if we reasonably determine suspension is necessary to avoid material harm to Flodesk or its other customers; or (d) as required by law or at the request of governmental entities.

6. Proprietary rights; Restrictions

6.1 Flodesk Content; Licensed Images; Authorized Use

a) Flodesk Content

Except for your contact lists and content, as further described in Section 6.4(b) below, all content made available through the Services, including any images made available through any email or tools provided by Flodesk (the “Licensed Images“), designs, templates, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively with the Licensed Images, the “Flodesk Content“), are the property of Flodesk or its licensors. No Flodesk Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Flodesk Content.

b) Licensed Images

To the extent applicable, you are granted a limited, revocable, non-sublicensable license to use the Licensed Images solely in connection with the Services. You are prohibited from using any Licensed Images: (i) with pornographic, defamatory, or unlawful content or in such a manner that infringes upon any third party’s trademark or intellectual property rights; (ii) as a trademark, service mark, or logo; and (iii) portraying any person depicted therein (a “Model“) in a way that a reasonable person would find offensive, including but not limited to depicting a Model (a) in connection with pornography, “adult videos“, adult entertainment venues, escort services, dating services, or the like; (b) in connection with the advertisement or promotion of tobacco Services; (c) as endorsing a political party, candidate, elected official, or opinion; (d) as suffering from, or medicating for, a physical or mental ailment; or (e) engaging in immoral or criminal activities.

c) Authorized Use

Any use of the Flodesk Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to your use of the Services and the Flodesk Content granted herein. All rights of Flodesk or its licensors that are not expressly granted in this Agreement are reserved to Flodesk and its licensors.

6.2 No Rights in Service or Software

We own all proprietary rights in the Service, including, but not limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property rights. This is an Agreement for Services and access to the Flodesk Site, and except as expressly set forth herein, you are not granted a license to any software by this Agreement and nothing on the Site shall be construed to confer any grant or license of any intellectual property rights in the Service or any software, whether by estoppel, by implication, or otherwise. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services, or any software, documentation, or data related to Services (“Software“); remove any proprietary notices or labels from the Site or any Software; modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.

6.3 Your Information and Content

a) Your Information

In using the Services, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to us and we may collect information about your use of the Services. We may use this information in accordance with our Privacy Policy (the “Privacy Policy”) and relevant notices, if any, provided at the point of information collection or use.

b) Your Content and Contacts

We will also obtain any information that you provide to us in connection with your use of Services, such as contact lists (including email addresses and phone numbers of your contacts) and content. We acknowledge your ownership rights in such contact lists. As more fully described in our Privacy Policy, we will never sell or rent your contact lists to anyone without your permission. You hereby grant to us a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display your contacts and content only as required by us to provide the Services, and, where applicable, as described in our Privacy Policy. You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of your contacts and content, and you are responsible for maintaining, securing and storing your contacts and content in accordance with applicable law and any contractual obligations you may have (including our Data Processing Addendum, which is incorporated herein by reference). You represent and warrant that you own or have secured all rights and interest in and to your contacts and content required for us to use your contacts and content as contemplated by this Agreement.

c) Submissions

If you submit any suggestions, business information, ideas, concepts or inventions or content to us through the Service, or website, or otherwise (“Submissions“), you agree such Submission is non-confidential for all purposes and you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Submission in any manner or in any media now known or hereafter created.

d) Backup

You are responsible for making frequent backup copies of your contacts and content.

e) User Content

Flodesk may provide you with interactive opportunities through the Site and Services, including, by way of example, the ability to post or otherwise provide to Flodesk or other Flodesk users Templates, or other text, photos, images, fonts, or audio and video content (collectively, “User Content”). The term “Template” refers to a customizable design or pattern, comprised of various visual and text elements, which may be adapted for use by other Flodesk users in their own email marketing and e-commerce efforts. You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post, and/or otherwise transmit through the Services. You further represent and warrant that any User Content submitted, posted, and/or otherwise transmitted through the Services by your or your Authorized Users does not (i) violate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) contain material that is false, intentionally misleading, deceptive, defamatory, offensive, abusive, or pornographic, including material that racially or religiously vilifies, incites violence or hatred, or is likely to insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation, or any physical or mental disability; (iii) contain sexually explicit or violent content or photos, images, or videos of weapons, illegal drugs, or hate symbols; (iv) contain any material that is unlawful or relates to unlawful conduct (including phishing and spoofing); (v) create a privacy or security risk to any person, including by soliciting personal information from any person, or contain any confidential, sensitive, private, or personally identifiable information; (vi) solicit money from any person; (vii) contain financial, legal, medical, or other professional advice; (viii) harm, abuse, harass, stalk, threaten, or otherwise offend; (ix) reflect negatively on Flodesk, including Flodesk goodwill, name, and reputation; (x) tamper with, hinder the operation of, or make unauthorized modifications to our Site; (xi) otherwise result in civil or criminal liability for you, Flodesk, or any third party; (xii) violate any law or regulation; or (xiii) violate these Terms or any community or content guidelines that Flodesk may publish from time to time. You hereby grant Flodesk a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use the User Content in connection with Flodesk business or marketing, and in all forms now known or hereafter invented (collectively, “Uses”), without notification to and/or approval by you. You acknowledge that Flodesk has no obligation to attribute any User Content to you in connection with any Use. You agree that this license includes the right for other Users to access and use your User Content, such as Templates, in conjunction with participation in the Services and as permitted through the functionality of the Services. Flodesk reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish or that we consider to be objectionable for any reason. You agree that Flodesk may monitor and/or delete your User Content (but does not assume the obligation to do so) or may decide to not publish, display, or otherwise make available your User Content for any reason at Flodesk’s sole discretion.

6.4 Custom Fonts

a) By uploading a custom font or font file to the Services (“Custom Fonts “) you represent and warrant that you have all necessary rights to use, and to sublicense to us the right to use, the typeface and font software for such Custom Fonts, in connection with your use of the Services. Custom Fonts are not considered content. We do not represent or warrant that your Custom Fonts will be compatible with or be suitable for use with the Services. We may collect information connected to your use of the Custom Fonts, such as names of the Custom Fonts that you upload and how you use the Custom Fonts.b) If we are informed by a third party or become aware that you do not have the rights to which you warrant you have with respect to the Custom Fonts, or that your Custom Fonts violate third-party rights, then we may remove the Custom Fonts from your account, from the Services, or from your content that uses those Custom Fonts. If we remove your Custom Fonts from your account, the Services, or the content that uses the Custom Fonts, the display of your content may change.c) You may revoke our access to your Custom Fonts and terminate our rights at any time by deleting your Custom Fonts from the Service. Upon any termination or closure of your account, we reserve the right to delete your Custom Fonts. Some copies of your Custom Fonts may be retained as part of our routine backups.

7. Compliance with laws

The Site and the Services shall only be used for lawful purposes and you shall use the Site and Services only in compliance with this Agreement and all other applicable laws in your jurisdiction or otherwise, including but not limited to:

the CAN-SPAM Act;
Canada’s Anti-Spam Legislation;
California Consumer Privacy Act ("CCPA");
the European Union’s General Data Protection Regulation 2016/679 (“GDPR“);
the United Kingdom’s General Data Protection Regulation;
any policies and laws and regulations related to unsolicited emails, spam, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry;
laws relating to advertising, sales or promotional efforts or practices, redemption, refunds and provision of your services;
laws that govern false, unfair and deceptive practices, coupons, gift cards/certificates, defective services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards;
laws that govern lotteries, sweepstakes, contests and promotions; and
laws that govern the collection of donations and charitable giving.

You further agree to refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with your use of our Site or Services. You may not use our Site or Services for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.

You are responsible for determining whether our Site or Services are suitable for you to use in light of any regulations, such as the Health Insurance Portability and Accountability Act ("HIPAA"), the Gramm-Leach-Bliley Act ("GLBA"), European data privacy laws, or other laws. If you are subject to a particular regulation and you use our Site or Services, then we will not be liable if our Site or Services do not meet those requirements.

8. Additional restriction on use of the services

You agree to comply with the following in connection with your use of the Site and the Services:

You may not access or use the Site or the Services in a way that uses technology or other means to access, index, re-render, frame, mirror, truncate, add to, inject, filter or link to the Site or the Services that is not authorized by us (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized use, download, linking, framing, reproduction access to, or distribution of the Site or the Services).
You shall not use the Site, the Services or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party (except as expressly permitted by our partner programs).
You may not use any deep-link, page-scrape, robot, crawl, index, spider, offline reader, click spam, macro programs, internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, index, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Site or the Services for any unauthorized purpose.
You may not use the Site or the Services in a way that, to be determined in our sole discretion, damages, disables, overburdens, impairs, or gains unauthorized access to the Site or the Services, including Flodesk’s servers, computer network, or user accounts.
You may not use the Site or the Services in a way that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Site or the Services.
You may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work, or otherwise use the content of the Site or the Services for public or commercial purposes without our express written permission.
You shall not interfere with or disrupt the Site or any related Flodesk websites or servers or networks connected to the Site or the Services.
You shall not restrict or inhibit any other user from enjoying and using the Site or the Services.
You shall not use the Site or the Services in violation of applicable law or third party rights(including third party terms of service), and shall not use the Site or the Services for hosting or distributing content (for example, images and documents) that infringes on the intellectual property rights of others.
You shall not repeatedly upload and remove unique email addresses or otherwise try to manipulate data in an attempt to circumvent our Fee Schedule or other billing procedure.
You shall not set up multiple accounts for any individual or organization in order to send. substantially similar content unless you are part of a franchise.
You may only use our templates, any images we provide, or any other features or functionality of the Services with the Services themselves (for example, you may not take.an image or template and use it on materials you create without using the Services). This restriction also applies to customized templates prepared by our professional services group.
You shall not use documents and images hosted by us on servers controlled by us for any purpose whatsoever other than in connection with the Services. If you own the document or image, you can use it outside of the Services provided it is not hosted by us.
You shall not include any incentives (for example, coupons, discounts or awards) in any messages you send by means of the Site or the Services that encourage a recipient to forward the message to another recipient, other than as expressly encouraged and permitted within the applicable Product.

9. Contracts’ and customers’ privacy

9.1 Privacy Notice

You shall adopt and comply with your own “privacy notice.“ Your privacy notice will be posted so that your contacts and customers have notice of your data collection and use practices, including your practices with respect to contact and other data that you obtain from us, and will otherwise comply with applicable law. We have provided you with information regarding our use of contact and customer data in the Privacy Policy, which may be modified by us from time to time. Your privacy notice will include substantially similar disclosure (and update such disclosure from time to time) so that your contacts and customers are aware of how their data is used by you and us.

9.2 Sensitive Information

You will not import or incorporate into any contact lists or other content you upload to our servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal or health information of any kind.

10. Warranty disclaimer; Remedies; Release.

YOU EXPRESSLY AGREE THAT THE SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS“ AND “AS AVAILABLE“ BASIS. USE OF THE SITE OR THE SERVICES AND ANY RELIANCE BY YOU UPON THE SITE OR THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.

WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.

IN ADDITION, WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (b) ANY EVENT HOSTED, DONATION SOLICITED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.

NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE SERVICES SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE SERVICES.

TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE SERVICES, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE CONTACTS AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).

11. Limitations of liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL FLODESK, OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “FLODESK“) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF FLODESK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF FLODESKTO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE SERVICES IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

12. Indemnification

You expressly agree to defend, indemnify and hold harmless Flodesk from and against any claim, suit, demand, loss, liability, damage, action, or proceeding (and related attorney’s fees) arising out of or relating to (i) your use of our Services or your access of our Site, (ii) your failure to properly describe or deliver goods or services or (iii) your failure to comply with applicable law, or (iv) your acts or omissions as it relates to your legal or contractual obligations to your customers. You also agree to defend, indemnify, and hold harmless Flodesk from and against any claim, suit, demand, loss, liability, damage, action, or proceeding (and related attorney’s fees) arising out of or relating to (i) activity on your Connected Account, whether initiated by you or not (including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, or use of the Checkout Platform in a manner that is illegal or inconsistent with this Agreement or the Stripe Connect Account Agreement; and (ii) any inaccurate or incomplete information provided to Flodesk, or Stripe and Flodesk, as part of the onboarding and/or use of the Connected Account.

13. Thirty party tools and services

The tools and services described in this section are referred to as “Third Party Services”.

13.1 Optional Tools

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms.

13.2 Third Party Links

Certain content, products and services available via our Service may include materials from third-parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

13.3 Partner Integrations

We may establish relationships with third party software/service providers (“Integration Providers”) who incorporate into their own software/services a degree of interoperability with ourService (a “Partner Integration”), to do things like sync contact/subscriber lists, email activity, and campaign analytics with their own databases, by creating software, services, or modules that connect to ourServices. If you choose to use a Partner Integration, you expressly acknowledge and agree that Flodesk may provide data generated by or stored in your Account (including personal data) to such Integration Provider, and agree that the Integration Provider’s use of that data will be governed solely by the applicable agreements between you and the Integration Provider. We are not liable for any harm or damages related to use of your data by the Integration Provider. Please carefully review the Integration Provider’s policies and practices and make sure you understand them before you enable the Partner Integration. Complaints, claims, concerns, or questions regarding a Partner Integration should be directed to the Integration Partner.

14. California-specific terms

The California-Specific Terms specified in the Privacy Policy will apply if you are a Business under the CCPA and you share with us Personal Information (as that term is defined under the CCPA) about California residents which would otherwise constitute a Sale (as that term is defined under the CCPA).

15. International use; prohibited by law

In recognition of the global nature of the Internet, you agree to comply with all local rules where you reside or your organization is located regarding online activities, email and the Site or the Services. More specifically, but without limitation, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you reside. The Site or the Services are controlled and operated by us from the United States (although we may share data with third parties around the world to assist us in providing the Site or the Services) and we make no representation that the Site or the Services are appropriate or available for use in other locations. Those who access the Site or the Services from other locations do so at their own initiative and risk, and are fully responsible for compliance with all applicable laws in those locations. We do not offer the Site or the Services where prohibited by law.

For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) (once in effect) (“GDPR“) and any applicable national implementing laws in your jurisdiction, and with respect to your contacts’ or customers’ personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) of such personal data. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).

To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data to us and that you have the necessary permission to allow us to receive and process personal data and send communications to that individual on your behalf.

16. Export controls

The Software that supports and facilitates the Service is subject to U.S. Export Control Laws and Regulations. Export laws are set up by the U.S. government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Software may be downloaded or otherwise exported or re-exported in violation of U.S. Export Control Laws and Regulations and any other applicable export laws and regulations (collectively, “Export Control Laws“). Therefore, you agree that you will not, directly or indirectly through a third party, allow the Software for your Account to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as described in any Export Control Laws.

17. How to report abuse (such as spam or copyright infringement)

If you think anyone is violating any of these Terms, please notify us immediately.

If you received spam you think came from a Flodesk user, please report it to our Trust and Safety Team.

If you believe anyone has posted or distributed materials on or through the Site or Services which violate your copyrights or other intellectual property rights, you can notify us via the contact information provided in our Copyright Policy.

It is Flodesk’s policy, in appropriate circumstances and at our discretion, to suspend and/or terminate the accounts of users who repeatedly infringe the copyrights or other intellectual property rights of third parties, or who violate our prohibitions on spam.

18. General provisions

18.1 Entire Agreement

We and you agree that this Agreement (these Terms, together with the additional terms and conditions and policies referenced herein and/or available by hyperlink, which are incorporated herein by this reference) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

18.2 Modifications

We may change any of the Terms by posting revised Terms on our Flodesk Site. Unless you terminate your Account, the new Terms will be effective immediately upon posting and apply to any continued or new use of the Services.

18.3 Assignment

You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.

18.4 Severability

If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.

18.5 Governing Law

This Agreement shall be governed by the laws of the United States and the State of California, without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. For any disputes or claims not subject to arbitration, the federal courts of the United States in the Northern District of California and the state courts of the State of California located in San Francisco, Alameda or Santa Clara counties in California will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts.

18.6 Arbitration

You hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA“) in connection with any dispute relating to, concerning or arising out of this Agreement, whether in contract, tort, fraud, misrepresentation or any other legal theory. The arbitration will be conducted before a single arbitrator and will be held at the AAA location in San Francisco, California.

(a) ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CUSTOMERS, SUBSCRIBERS OR USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.

(b) Only a court, and not an arbitrator, shall determine the validity and effect of the class action waiver. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit.

(c) Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

(d) No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate a litigation or any other proceeding against us in violation of this paragraph, you agree to pay our reasonable costs and attorneys’ fees incurred in connection with its enforcement of this paragraph.

(e) The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

18.7 Attorneys Fees

If any action or proceeding is commenced to enforce this Agreement or any right arising in connection with this Agreement, the prevailing party in such action or proceeding will be entitled to recover from the other party the reasonable attorneys fees, costs and expenses incurred by such prevailing party in connection with such action or proceeding.

18.8 Force Majeure Event

If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, vandals, or hackers, epidemic or other public health event (a “Force Majeure Event”) the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence. If any Force Majeure Event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.

18.9 No Agency

The parties are independent contractors to one another. Nothing in this Agreement or otherwise shall create an employer-employee, agency, joint venture or partnership relationship. No employee, agent, consultant or assistant of either party shall be considered an agent of the other party.

18.10 Third Party Beneficiaries

Flodesk’s affiliate companies, underlying service providers, business partners, third-party suppliers and providers, account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.

18.11 Additional information

If you have any questions about the rights and restrictions above, or would like to report any inaccuracies or errors, please contact us by email at benjamin@flodesk.com.

Appendix I

Flodesk Checkout

Prohibited and Restricted Businesses
Policy Version Date. February 2023

Use of Flodesk’s Checkout services for any dealings, engagement, or sale of goods/services linked directly or indirectly with jurisdictions Flodesk has deemed high risk, such as Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk Regions, is prohibited. Additionally, it is prohibited to use Flodesk’s products and services to directly or indirectly export, reexport, sell, or supply accounting, trust and corporate formation, or management consulting services to any person located in the Russian Federation.

Prohibited Businesses

You must not use Flodesk’s Checkout services for the following activities.Illegal products and services

Illegal drugs, substances designed to mimic illegal drugs, and equipment designed for making or using drugs
Fake references or ID-providing services
Telecommunications manipulation equipment including jamming devices
Any business or organization that a. engages in, encourages, promotes or celebrates unlawful violence or physical harm to persons or property, or b. engages in, encourages, promotes or celebrates unlawful violence toward any group based on race, religion, disability, gender, sexual orientation, national origin, or any other immutable characteristic
Any other products or services that are in violation of law in the jurisdictions where your business is located or targeted to

Products and services that infringe intellectual property rights

Sales or distribution of music, movies, software, or any other licensed materials without appropriate authorization
Counterfeit goods; illegally imported or exported products
Unauthorized sale of brand name or designer products or services
Any other products or services that directly infringe or facilitate infringement upon the trademark, patent, copyright, trade secrets, proprietary or privacy rights of any third party

Products and services that are unfair, predatory, or deceptive

Pyramid schemes
“Get rich quick“ schemes including: investment opportunities or other services that promise high rewards to mislead consumers; schemes that claim to offer high rewards for very little effort or up front work; sites that promise fast and easy money; businesses that make outrageous claims, use deceptive testimonials, use high-pressure upselling, and/or use fake testimonials; (with or without a written contract) offering unrealistic incentives/rewards as an inducement to purchase products or services but do not respond to any queries after the purchase
No value added services including sale or resale of a service without added benefit to the buyer and resale of government offerings without authorization or added value
Sales of online traffic or engagement
Negative response marketing and telemarketing
Predatory mortgage consulting, lending, credit repair and counseling services
Predatory investment opportunities with no or low money down
Remote technical support; mugshot publication or pay-to-remove sites; essay mills; chain letters; door-to-door sales
Any other businesses that Flodesk considers unfair, deceptive, or predatory towards consumers

Adult content and services

Pornography and other mature audience content (including literature, imagery and other media) depicting nudity or explicit sexual acts
Adult services including prostitution, escorts, pay-per view, sexual and intimate massages, and adult live chat features
Adult video stores
Gentleman’s clubs, topless bars, and strip clubs

Certain legal services

Law firms collecting funds for purposes other than legal service fee payment
Bankruptcy attorneys
Bail bonds

Firearms, explosives and dangerous materials

Guns, gunpowders, ammunitions, weapons, fireworks and other explosives
Peptides, research chemicals, and other toxic, flammable and radioactive materials

Gambling

Games of chance including gambling, internet gambling, sweepstakes and contests, fantasy sports leagues with for a monetary or material prize
Sports forecasting or odds making with a monetary or material prize
Lotteries
Bidding fee auctions

Marijuana

Cannabis products
Cannabis dispensaries and related businesses
Products containing any amount of CBD/THC

Misuse of Flodesk Checkout

Use of Flodesk Checkout with false, manipulated, inaccurate, or misleading information regarding your identity, business entity, the nature of business, and any other information requested by Flodesk (you must inform us immediately of any changes to your personal and business information)
Use of Flodesk Checkout to facilitate transactions on behalf of another undisclosed merchant
Use of Flodesk Checkout principally as a virtual terminal (e.g., submitting card transactions by manually inputting card information)
Processing where there is no bona fide good or service sold, or donation accepted; card testing
Evasion of card network chargeback monitoring programs
Cross-border acquiring where the business address of the merchant is outside of the jurisdiction of the acquiring Flodesk entity unless permitted under the card network rules
Sharing cardholder information with another merchant for payment cross-sell products or services
Use of Flodesk intellectual property without prior written consent from Flodesk; use of the Flodesk name or logo including use of Flodesk trade or service marks inconsistent with the Flodesk Marks Usage Agreement, or in a manner that otherwise harms Flodesk or the Flodesk brand; any action that implies an untrue endorsement by or affiliation with Flodesk

The types of businesses listed are representative but not exhaustive.
Additional Jurisdiction-Specific ProhibitionsHong Kong

Marketing lead generation services
Unregistered charities

India

Alcohol
Charities
Dating and matchmaking services
Lobby groups, political organizations
Mining and oil drilling
Sex toys
Sexually oriented dating services

Japan

Animals
C2C services outside of Flodesk Platform
Donations to individuals
Fundraising for or financing businesses that are listed as prohibited/restricted above
Health instruments
Industrial waste disposal and garbage disposal devices; water purifiers
International marriage brokerage businesses

Malaysia

Sex toys
Sexually oriented dating services

Mexico

Adoption agencies
Credit card and identity theft protection services
Cross-border currency exchange services
Debt collection agencies
Direct marketing- travel
Electronic cigarettes for card-not-present transactions
Ephedrine
Game console modification devices
HCG weight loss
Investment services
Penny auctions
Pharmaceuticals wholesale for card-not-present transactions
Search engine optimization
Telemedicine
Tobacco for card-not-present transactions

Singapore

Marketing lead generation services
Sale of ads for any products or services deemed illegal in Singapore; sales of products that facilitate payments to any of these products or services
Sex toys
Sexually oriented dating services

United Arab Emirates

Historical artifacts, ivory products, prison-made products
Sex toys
Sexually oriented dating services

United States

Extended warranties and subscriptions over one year
Sex toys
Sexually oriented dating services
Unregistered charities

Restricted Businesses

You must not use Flodesk’s services for the following activities, unless you have received our prior written approval. Restricted Business categories may be imposed through card network rules, requirements of financial partners, or due to compliance and legal obligations. If your business falls into one of the restricted categories, please contact us. We are here to help!

Regulated industries such as:Financial products and services

Investment and brokerage services
Lending services
Buy Now Pay Later services
Crowdfunding
Debt collection agencies
Insurance services including medical benefit packages
Money transmitters, currency exchange services and other money services businesses
Neobanks / challenger banks
Other financial institutions

Government services

Government grants
Embassy, foreign consulate, or other foreign governments

Pharmaceuticals and telemedicine

Online pharmacies
Prescription-only products including card-not-present pharmaceuticals
Telemedicine and telehealth services

Tobacco

Tobacco products including e-cigarettes and e-liquid

Others

Credit card and identity theft protection services
Other age restricted goods or services

Businesses that may pose elevated financial risk such as:

Travel

Travel reservation services and clubs
Airlines and cruises
Timeshare services

Non-fiat currency and stored value

Virtual and cryptocurrencies, non-fungible tokens (NFTs), and mining services (for crypto and NFT supportability and availability by region, please contact Flodesk).
Prepaid phone cards, sim cards, and phone services
Sale of stored value or credits maintained, accepted and issued by anyone other than the seller
Sale of in-game currency or game items, unless the merchant is the operator of the virtual world

Business models that may be particularly prone to abuse by ‘bad actors’ such as:

Multi-level marketing

Businesses where sellers get their revenue both from selling items and from signing up new sellers
Network marketing and referral marketing programs
Shipping and forwarding brokers

Shipping

Shipping brokers
Forwarding brokers
Drop shipping

Others

Charity sweepstakes and raffles for the explicit purpose of fundraising

The types of businesses listed are representative but not exhaustive.

Appendix II

Version Date. November 2024

Please read these Flodesk Affiliate Terms (these “Affiliate Terms”) carefully because they govern your participation in, and the terms and conditions applicable to, the marketing program offered by Flodesk, Inc. (“Flodesk”) whereby You are authorized to disclose, share, make available, or otherwise permit potential customers of Flodesk to use uniquely generated hyperlinks and/or affiliate codes for potential customers to sign up for Flodesk Services, as made available to You via the Flodesk Services in connection with the Affiliate Program (“Affiliate Link(s)/Code(s)”) for potential customers to subscribe to Flodesk’s online technology platform and related services for design, creation, and automation of emails and sales pages and checkout processes, and related analytics (such program, the “Affiliate Program,” and such platform and/or services, the “Flodesk Services”). For purposes of these Affiliate Terms, you will be referred to as “You”, the “User” or “Affiliate”.

1. Agreement To Terms

By (i) placing an Affiliate Link/Code on Affiliate’s website, social media channels, or other digital properties (excluding discount sites) (“Affiliate Channels”), (ii) otherwise disclosing, sharing, making available, or permitting a third party to utilize an Affiliate Link/Code in a manner authorized herein, or (iii) accepting these Affiliate Terms by copying the Affiliate Link/Code, Affiliate hereby agrees to be bound by these Affiliate Terms.

2. Eligibility

User will only be eligible to become an Affiliate and receive an Affiliate Commission (as applicable pursuant to Section 5) if (i) User complies with the Flodesk Terms of Service; (ii) user has provided Flodesk with Affiliate’s valid PayPal email address to receive payment for such Affiliate Commission; and (iii) User has either a 30-day free trial account or is a paid user of Flodesk Services (collectively, “Eligibility Criteria”). Once an Affiliate, it is the responsibility of Affiliate to keep their information, including their PayPal email address, updated and current and, failure to do so may result in the loss of status as Affiliate.

3. Affiliate Links/Codes

Affiliate may publish the Affiliate Links/Codes provided by Flodesk on its Affiliate Channels, and Affiliate may share or disclose Affiliate Links/Codes to potential customers of Flodesk except in a manner that would be considered an Excluded Transaction as defined in Section 5.2. Each URL link as part of the Affiliate Links/Codes will include an online “cookie” or other tracking tool, and each unique code as part of the Affiliate Links/Codes will also be traceable to Affiliate, in each case to enable Flodesk to determine which transactions are made through the Affiliate Links/Codes, such as if a new user signs up for Flodesk Services utilizing an Affiliate Link/Code, (i) where such Flodesk Services are provided free of charge; or (ii) where such Flodesk Services are provided on a fee-for-service basis (Subsection (ii), a “Paid Service Transaction”).

4. Policies, Rules, And Guidelines

Affiliate will comply with (i) these Affiliate Terms, (ii) the Flodesk Terms of Service, and (iii) all rules, policies, and guidelines applicable to the Affiliate Program and/or made available or communicated by Flodesk to Affiliate, including without limitation “The Do’s and Don’ts of Sharing Your Flodesk Affiliate Link” (Subsections (ii) and (iii), “Documentation”). Where there is any conflict between the provisions of the Affiliate Terms and the Documentation identified here, the provisions of these Affiliate Terms shall prevail in all matters specific to the Affiliate Program. Violation of this provision may, in Flodesk’s sole and absolute discretion, result in the suspension or termination of Affiliate’s eligibility to earn any Affiliate Commissions and/or Affiliate’s use of the Flodesk Services.

5. Payment Terms

5.1 Affiliate Commission

For each Paid Service Transaction that is not otherwise excluded, as defined in Section 5.2, subject to Affiliate having met the Eligibility Criteria, Affiliate will receive a one time payment of an amount $19 USD (or equivalent thereof in the currency of the Affiliate at the time of payment and as determined by Company) less any transaction or currency exchange fees as may be applicable (the “Affiliate Commission”). The Affiliate Commission may be another special or negotiated rate separately determined in writing by Flodesk. The parties agree that, unless otherwise agreed between the parties in writing, the Affiliate Commission is the sole compensation payable to Affiliate in connection with these Affiliate Terms. Subject to the Affiliate having met the Eligibility Criteria, the Affiliate Commission will be due and payable by Flodesk to Affiliate’s designate PayPal account (pursuant to the Eligibility Criteria) within thirty (30) days after Flodesk actually received fees from the applicable user pursuant to a Paid Service Transaction in connection with a separate written license agreement (e.g., terms and conditions, license agreement, or similar agreement for the access and use of Flodesk Services on a fee-for-service basis) between Flodesk and the applicable user. If Affiliate does not meet the Eligibility Criteria within one (1) year of the first qualifying Paid Service Transaction (or otherwise becomes disqualified therefrom), then no Affiliate Commission shall be earned or due.

5.2 Excluded Transactions

A transaction that meets any of the following conditions, as determined in the sole and absolute discretion of Company, will not be considered a Paid Service Transaction (and therefore no Affiliate Commission will be earned):a) Purchases or Flodesk Services subscriptions that are subsequently canceled, refunded, or returned for any reason;b) Purchases or Flodesk Services subscriptions made by someone who is already (whether through use of a different Affiliate Link/Code or other discount code, or otherwise), or has at any time in the past been, a customer of Flodesk, or is engaged in discussions with Flodesk's sales representatives, regardless of whether the contact or payment information provided by such customer differs from the information contained in Flodesk's records;c) Purchases or Flodesk Services subscriptions that are not directly traceable to the Affiliate Links/Codes;d) Purchases or Flodesk Services subscriptions in exchange for which the customer has agreed to provide any form of compensation directly to Affiliate or that result from Affiliate offering, or implying any discounts, rebates, or other deals;e) Purchases or Flodesk Services subscriptions that Flodesk, in its sole discretion, reasonably suspects to have been made as a result of (i) any paid (as opposed to organic) efforts such as the purchase of ad placements or AdWords, or (ii) any fraudulent or misleading methods used to direct traffic through the Affiliate Links/Codes including, but not limited to, the use of any spamming, URL masking, self-referrals, fake redirects, or automated software to encourage or facilitate such purchases;f) Purchases or Flodesk Services subscriptions for which the payment of an Affiliate Commission would be prohibited by applicable law; org) Purchases or Flodesk Services subscriptions resulting from Affiliate's breach of its obligations, representations, or warranties under these Affiliate Terms.Should Affiliate’s acts or omissions result in an Excluded Transaction(s), Flodesk may, at its sole and absolute discretion, elect to (i) clawback the Affiliate Commission already paid on an Excluded Transaction, if any, (ii) offset the Affiliate Commission already paid on an Excluded Transaction, if any, against any future Affiliate Commissions which may become due to Affiliate, and/or (iii) suspend or terminate Affiliate’s eligibility to earn any Affiliate Commissions and/or Affiliate’s use of the Flodesk Services.

5.3 Taxes or Fees

Affiliate will be solely liable for any taxes (e.g., sale or state) or fees (if any, e.g., transaction or currency exchange fees) due on any Affiliate Commissions paid to Affiliate under these Affiliate Terms.

6. Licenses

6.1 License to Flodesk Marks and Flodesk Branding Materials

a) License Grant

Subject to the terms of these Affiliate Terms, Flodesk grants to Affiliate a limited, revocable, non-exclusive, royalty-free, non-transferable and non-assignable license to use, during the Term (as defined below): (i) Flodesk’s trade name, trademarks, service marks and logos (collectively, “Marks”) to the extent reasonably necessary for Affiliate to perform its obligations under these Affiliate Terms; and (ii) Flodesk's product descriptions, images, artworks, videos, and other branding content and materials (the “Flodesk Branding Materials”), for use solely in accordance with Flodesk's authorized promotions and related claims and disclosures.

b) Use Restrictions

Affiliate will immediately revise or cease use of any Marks or Flodesk Branding Material upon written request by Company. Affiliate will use the Flodesk’s Marks and the Flodesk Branding Materials exactly in the form provided by Flodesk, and in accordance with any guidelines and trademark usage policies provided by Flodesk, as may be updated from time to time. Flodesk reserves all rights to the Flodesk’s Marks and the Flodesk Branding Materials that are not expressly granted to Affiliate under these Affiliate Terms, and any use of the Flodesk’s Marks and the Flodesk Branding Materials shall inure solely to the benefit of Flodesk. Affiliate will not contest or otherwise challenge the validity of the Flodesk’s Marks and the Flodesk Branding Materials. For the avoidance of doubt, the licenses granted in this Section shall cease immediately upon expiration or termination of these Affiliate Terms.

6.2 License to Affiliate Marks

Affiliate grants to Flodesk, during the Term, a non-exclusive, non-transferable, royalty-free license to use, copy, and display Affiliate's Marks in connection with Flodesk's administration of the Affiliate Program.

7. Representations and Warranties

7.1 Mutual

Each party represents and warrants to the other party that (i) it has full right, power and authority to enter into and fully perform its obligations under these Affiliate Terms and (ii) the execution, delivery and performance of the terms and conditions of these Affiliate Terms do not conflict with any other agreement to which it is a party or by which it is bound.

7.2 Affiliate’s Representations and Warranties

Affiliate further represents and warrants to Flodesk that (i) it will comply, and all posts on the Affiliate Channels will comply, with all applicable laws, rules and regulations applicable to its activities and obligations hereunder including, but not limited to, laws governing unfair trade practices, bribery, corrupt practices, deceptive or misleading advertising, privacy and data protection, and will create, maintain and retain all records and documents reasonably necessary to demonstrate its full compliance with each such law, rule and regulation; (ii) without limiting the foregoing, it will comply with all relevant endorsement guidelines, including the United States Federal Trade Commission rules, regulations, guidelines and best practices, including with respect to disclosure of Affiliate’s relationship with Flodesk in connection with the Affiliate Link/Code; (iii) it will conduct its business in a manner that reflects favorably at all times on Flodesk and Flodesk’s products and services; (iv) it will not directly or indirectly issue or communicate any statement that maligns, denigrates or disparages Flodesk, any of its product or services or any of it is officers, directors or employees; (v) it will not make any false or misleading representations with regard to Flodesk or Flodesk’s products or services; (vi) it will not make any representations, warranties or guarantees with respect to the specifications, features, functionality or results of Flodesk’s products or services; (vii) it will not alter or modify the Affiliate Links/Codes, including any underlying software code or technology; and (viii) none of the posts made to the Affiliate Channels in connection with the Affiliate Program will infringe or violate any intellectual property, privacy or publicity right of any third party.

8. Term and Termination

8.1 Term

These Affiliate Terms will commence on the date which You are bound by these Affiliate Terms pursuant to Section 1 and will remain in full force and effect (unless terminated earlier as provided below) for as long as Affiliate uses the Affiliate Link/Code or the Flodesk Services (the “Term”).

8.2 Termination for Cause

These Affiliate Terms may be terminated by either party at any time immediately upon written notice to the other party in any of the following circumstances (i) a violation of any of the items referenced herein in Sections 4 and 5.2, (ii) Affiliate’s violation of the representations and warranties identified in Section 7, (iii) for the material breach of the other party, which material breach has remained uncured for a period of thirty (30) days from the date of written notice of such breach, to the extent curable, or (iv) an adjudication of bankruptcy of any party under any bankruptcy or insolvency law or the appointment of a receiver for business or property of the other property or the making of any general assignment for the benefit of its creditors.

8.3 Termination for Convenience

Flodesk may terminate these Affiliate Terms for any reason at any time upon written notice to Affiliate. Affiliate will be entitled to the Affiliate Commission only on those Paid Service Transactions successfully completed as required herein before termination or expiration of these Affiliate Terms.

8.4 Survival

Sections 4, 5, 6.1(b), 6.2, 7, 8.4, 9, 10, 11, 12, 13, and 14 will survive termination or expiration of these Affiliate Terms.

9. Confidentiality

9.1 Confidentiality

Each party agrees to (i) not to disclose any information received from the other party that is marked as “confidential” or “proprietary” or should reasonably be considered confidential or proprietary (“Confidential Information”), except (a) to employees and consultants who have a bona fide need to know in order to perform the obligations under these Affiliate Terms or (b) as required by law or any governmental entity, provided that notice is given to the other party to the extent permitted by law as soon as reasonably possible; and (ii) use the Confidential Information solely to perform its obligations or exercise its rights under these Affiliate Terms. Any Confidential Information received during the Term shall be returned (or destroyed, upon request) to the disclosing party promptly following any expiration or termination of these Affiliate Terms.

9.2 Exclusions

Confidential Information will not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent documentation in the receiving party's possession.

10. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE AFFILIATE LINKS/CODES, FLODESK’S WEBSITES, AND FLODESK IP ARE PROVIDED ON AN “AS IS” BASIS, AND FLODESK MAKES NO WARRANTIES OR REPRESENTATIONS TO AFFILIATE OR TO ANY OTHER PARTY REGARDING ANY OF THE FOREGOING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLODESK HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, FLODESK HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE AFFILIATE LINKS/CODES, FLODESK WEBSITES, OR FLODESK IP WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

11. Indemnity

Affiliate will defend, indemnify and hold Flodesk harmless from and against any and all liabilities, damages, settlements, fines, expenses and fees (including reasonable attorneys’ fees and court costs) resulting from any claims, suits or proceedings (including regulatory or other government actions) (“Claims”) arising out of or related to Affiliate’s breach of any representation or warranty set forth herein or any gross negligence, willful misconduct or fraud by Affiliate. Flodesk may participate in the defense or settlement of any such Claim at its own expense and with its choice of counsel, or, if Affiliate refuses to fulfill its obligation of defense, Flodesk may defend itself at Affiliate’s sole cost and expense. Affiliate will not enter into any stipulated judgment or settlement that purports to bind Flodesk without Flodesk’s express written authorizations, which shall not be unreasonably withheld.

12. Limitation Of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL (I) FLODESK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THESE AFFILIATE TERMS, SUCH AS, BUT NOT LIMITED TO, LOSS OF GOODWILL, REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, AND (II) FLODESK’S CUMULATIVE LIABILITY TO AFFILIATE OR ANY THIRD PARTY IN CONNECTION WITH THESE AFFILIATE TERMS EXCEED THE TOTAL AMOUNT PAID BY FLODESK TO AFFILIATE UNDER THESE AFFILIATE TERMS IN THE SIX (6)] MONTHS IMMEDIATELY PRECEDING THE ACTS GIVING RISE TO THE CLAIM, IN EACH CASE WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

13. Governing Law; Dispute Resolution

These Affiliate Terms will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles. All disputes between the parties arising from or concerning in any manner the subject matter of these Affiliate Terms will be brought exclusively in the courts located in the State of California, in the counties of either San Francisco, Santa Clara or Alameda, and the parties irrevocably consent to the personal jurisdiction and venue therein.

14. General

14.1 Severability

If any provision of these Affiliate Terms is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of these Affiliate Terms will remain in full force and effect.

14.2 Waiver

Either party’s failure to enforce any provision of these Affiliate Terms will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these Affiliate Terms will be effective unless it is in writing and signed by the party granting the waiver.

14.3 Assignment

Affiliate may not assign or transfer these Affiliate Terms, by operation of law or otherwise without Flodesk’s prior written consent. Any attempt to assign or transfer these Affiliate Terms by Affiliate without such consent will be void.

14.4 Relationship Between the Parties

Nothing in these Affiliate Terms will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

14.5 Reservation of Rights

Except for the limited express rights granted by Flodesk to Affiliate under these Affiliate Terms, Flodesk owns and will retain all right, title, and interest in and to the Flodesk Services, Affiliate Program, Flodesk’s Marks, Flodesk Branding Materials, Flodesk IP, and any information or materials provided or made available by Flodesk to Affiliate in connection with these Affiliate Terms or the Affiliate Program (collectively, “Flodesk IP”), and all intellectual property rights in and to each of the foregoing.

14.6 No Third-party Beneficiaries

Unless otherwise expressly provided, no provisions of these Affiliate Terms are intended or will be construed to confer upon or give to any person or entity, other than Flodesk and Affiliate, any rights, remedies or other benefits under or by reason of these Affiliate Terms.

14.7 Counterparts

These Affiliate Terms may be executed in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same agreement. Execution and delivery of these Affiliate Terms may be evidenced by electronic means.

14.8 Entire Agreement

These Affiliate Terms are the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. These Affiliate Terms may be amended or modified only by a written document executed by duly authorized representatives of the parties.